Restoring Inaawendewin to the Trust Relationship

Manoomin, or the wild rice found in the western Great Lakes, is a critically important relative of the Anishinaabeg tribal nations (Katanski, 2017). The Anishinaabeg originated on the Atlantic seaboard long ago, but migrated inland up Gichigami-ziibi, what is now the Saint Lawrence River, until they reached a place where food rested on water. This was Manoomin, or the great berry. In the trickster story “Nanaboozhoo and the Duck,” Nanaboozhoo is struggling to harvest food and supplies when he notices that a duck has left behind a small kernel in his kettle. Nanaboozhoo cooks the kernel, which makes the best soup he has ever tasted. He follows the duck until he locates the source of the kernel, seeing waterfowl feasting on the delicious great berry. He learns then of the bounty that Manoomin represents and shares it with the rest of the Anishinaabeg. Nanaboozhoo only learns this knowledge through the agency and generosity of his bird relatives.

Manoomin is harvested only during proper times by partners, with one partner guiding the canoe while the other knocks rice kernels into the canoe. Many kernels fall into the water, where they reseed the next season’s harvest of Manoomin. The literal intercon­nectedness of this transaction is exemplary of the Anishinaabe principle of inaawendewin, or relational accountability. Anishinaabeg harvesters know that careful harvesting of the Manoomin beds is critical to sustaining the resource. Just as impor­tantly, like Nanaboozhoo, the Anishinaabeg have learned the lesson that the plants and animals of Anishinaabewaki, the world of the Anishinaabe, have much more knowledge than we humans can possibly ever learn. The Anishinaabeg have learned lessons about their place in Anishinaabewaki, that they are dependent on the world around them and that the world around them is dependent on them as well.

One of the great struggles of the Anishinaabeg involves the effort to educate the colonizer with this knowledge. Western economic and political philosophies treat Manoomin and other relatives of the Anishinaabe as mere resources to be exploited until they are exhausted, then to move on. The obvious death spiral of such a philosophy can be seen all around us, as Manoomin beds are confiscated for mass exploitation, polluted, or destroyed. The Anishinaabeg, like other tribal nations in the United States, recognize the symbiotic relationship we possess with Manoomin and the rest of Anishinaabewaki.

The root of federal Indian law is the trust responsibility, originally known as the duty of protection. In this legal and political under­standing, the United States owes a duty of protection to tribal nations that originates in treaties and other agreements, a duty the federal government accepted when it took tribal nations under its wing. Unfortunately for the Indigenous peoples of this place, the United States chose to largely ignore its duties, seeking primarily to exploit and eradicate its Indigenous relatives rather than to humbly accept its obligations to them. The fate of Manoomin and its Anishinaabe relatives is a powerful metaphor for the federal-tribal relationship.

Fortunately, there are signs that the Anishinaabeg are beginning to educate the colonizer. It’s a slow process, full of frustration and setbacks, but it’s a worthy effort. In some places, Manoomin is protected, respected, and thriving. We should work toward expanding those successes.

THE LEGAL HISTORY OF THE TRUST RESPONSIBILITY

The relationship between Indigenous tribal nations and the United States is usually referred to as a trust. We refer to the federal gov­ernment’s trust duty or trust responsibility. Occasionally, observers might refer to this relationship as a guardianship, with tribal nations and individual Indians as wards of the federal gov­ernment’s guardian. But trusteeship and guardianship are mere metaphors used to describe the relationship. I prefer to describe this relationship in its original phrasing—the duty of protection.

The notion of the duty of protection originates in customary international law dating back centuries before the establishment of the United States. Under international law, larger, more powerful nations could agree to accept smaller ones as vassal nations under their protection. In this understanding, which the United States Supreme Court adopted as federal common law in the 1830s (Worcester v. Georgia, 1832), the smaller sovereign agrees to give up aspects of its external sovereignty in exchange for the retention of its internal sovereignty. In this protectorate, the vassal nation retains plenary authority over its own lands and people. The larger nation promises to defend the smaller nation’s sovereignty from all threats, including external ones like foreign powers and even the larger sovereign’s own government and citizens. Think of Italy and the Vatican or France and Monaco.

Through a land transfer agreement, the Resolution Copper mining company is seeking to dig an open pit copper mine like that in Bisbee, Arizona (above), at Chí’chil Biłdagoteel (top), a sacred Apache site. Bisbee Lavender Mine by Nicholas Hartmann is licensed under CC 4.0; Oak Flat by Elias Butler is licensed under CC 4.0.

This original understanding of the special relationship between tribal nations and the federal government is the reason that the United States negotiated and ratified hundreds of treaties with tribal nations. It is the reason that the Constitution includes refer­ences to commerce with Indian tribes and “Indians not taxed,” the only two provisions in the Constitution that explicitly mention racial or ethnic groups. Tribal nations within the exterior boundaries of the United States are not states, nor are they foreign nations (Cherokee Nation v. Georgia, 1831). Instead, they are “Indian tribes” that enjoy sovereignty as enforced by the special relationship with the United States.

As is well known, however, the United States quickly weaponized the duty of protection against tribal nations. Even in the same foundational opinions that codified the duty of protection into federal common law, the Supreme Court opened up the thesaurus (never a good idea for a lawyer to do) and paraphrased the duty of protection as a “guardian–ward” relationship, calling tribal nations “domestic dependent nations” and emphasizing tribal dependence on the federal government. No treaty or act of Congress announced this paradigm shift away from the duty of protection and toward guardianship, but the court (and then later Congress and the executive branch), simply assumed that its guardianship metaphor was law. By the end of the 19th century, it was common for the Supreme Court to treat guardianship as a syn­onym for the duty of protection (e.g., United States v. Kagama, 1886).

It is important to know what a “guardianship” means to lawyers. A guardian is a person who makes legal and financial decisions for a ward and owes a fiduciary duty to the ward. The typical guardian is a parent to a child. Less typical guardianships are those that allow an adult to make decisions for another who no longer can make those decisions for themselves. Think Britney Spears, who a judge placed into what would become a 13-year guardianship under her father. A guardian usually brings suit to enforce the fiduciary duty. In fact, the ward has no legal status at all. Courts frequently refer to wards as “incompetent under the law.”

For Indian people and tribal nations, the court’s metaphor became reality. Congress and the executive branch began to routinely make decisions on behalf of Indians and tribes without their con­sultation or consent. The government simply assumed that Indian and tribal property was effectively owned by the United States, allowing the government to do whatever it wanted with it. Worse, the government’s assumption of a “guardianship” enabled Indian child removal, mandatory boarding schools, forced adoptions, sterilizations, urban relocation, reservation allotment, and outright confiscations of Indian and tribal property. None of those activities would have been considered legal if applied to non-Indians, but the Supreme Court simply allowed them to happen by assuming Indians and tribes were wards of the federal government.

In the case of the Osage Indians (and a smattering of other tribal nations in Oklahoma and elsewhere), the weaponization of guardianship became deadly. As was recounted in numerous works such as Linda Hogan’s Mean Spirit (1990) and John Joseph Mathews’ Sundown (1934), as well as James Young Deer’s lost silent film, Tragedies of the Osage Hills (1926), Osage headright own­ers in the early 20th century often became wealthy due to the discovery of oil on their lands. But because federal law labeled full-blood Osage Indians as incompetent, non-Indians could become their guardians and, if they married their wards, become the heirs of the headrights. The situation led to many hundreds of Osage people being murdered for their headrights, often by their own spouses.

Riding the political winds of the era between World War I and the Civil Rights Movement, Congress’s Indian affairs agenda pin­balled from establishing a process for tribal nations to reorganize into constitutional democracies to terminating those new tribal governments. During the 1950s, one of the worst ever decades for tribal interests, Congress terminated its duty of protection to over 100 tribal nations and extended state law enforcement authority into many areas of Indian Country. Bureau of Indian Affairs officials proudly asserted near-absolute control over reservation Indians’ lives and tribal governance (Cohen, 1953).

Coinciding with the rise of the Civil Rights Movement in the 1960s, Native activists fought in favor of treaty fishing rights, land back, and tribal sovereignty. In the 1970s, Congress turned its ple­nary powers toward tribal self-determination and the restoration of terminated tribal nations. Congress also acknowledged the power of tribal nations to bring suit in federal courts and to retain their own legal counsel.

Consistent with the political turn toward tribal sovereignty, the Supreme Court largely discarded the guardianship metaphor in favor of a trust relationship metaphor. Gutting the reasoning of cases from the late 19th and early 20th centuries that utilized guardianship as a tool for dominion over Native people and tribal resources, the court recognized the vast power of Congress to enact statutes in furtherance of the trust responsibility (e.g., Morton v. Mancari, 1974). Moreover, the court would no longer allow federal officials to simply confiscate Indian or tribal property with­out due process or just compensation (e.g., Babbitt v. Youpee, 1997; United States v. Sioux Nation, 1980).

THE TWO “TRUST” DUTIES

In the last half century, federal authorities have usually acknowl­edged that the federal government’s relationship with tribal nations is best characterized as a trust relationship. The modern under­standing of the trust responsibility has two separate components.

The first kind of trust duty is a metaphor for the duty of protection. This is the same duty that tribal nations negotiated for in the treaty-making era in which tribal sovereignty in relation to Indian and tribally owned lands is paramount, while external sovereignty is largely the domain of the federal government. Non-treaty tribes enjoy the duty of protection as well, given that Congress has made a policy choice to treat all tribes more or less the same. Aspects of the duty of protection accepted by the United States include the obligation to protect tribal and Indian lands and resources and to ensure adequate governmental services (either federal or tribal or both) to tribal citizens and others in Indian Country. These are enor­mous duties, the scope of which should be similar to the scope of lands and resources the tribes granted to the federal government.

Unfortunately, the federal government rarely has fulfilled its responsibilities to Indians and tribes. The United States effectively destroyed the governmental and economic infrastructure in reser­vation territories, leaving tribal nations little with which to rebuild. Funding for governmental services has never come close to the need in Indian Country. Poverty, crime rates, and other social ills related to lack of adequate government infrastructure are endemic on most reservations. Worse, federal courts do not allow tribal nations to sue Congress to force adequate funding for gov­ernmental services guaranteed by the duty of protection (cf. Arizona v. Navajo Nation, 2023).

When Congress does act, however, the duty of protection serves as a robust source of federal power. The United States Constitution authorizes Congress to regulate commerce with tribal nations and establishes treaty power in the president and Senate. Those two sources of constitutional power are supplemented by the duty of protection. The recent United States Supreme Court decision affirming the constitutionality of the Indian Child Welfare Act pointed to the duty of protection as a useful source of power (Haaland v. Brackeen, 2023).

U.S. commissioners led by William Tecumseh Sherman brokered the Treaty of Fort Laramie with Lakota, Cheyenne, and Arapaho leaders. Just nine years later, the U.S. broke the treaty by seizing the Black Hills. In the landmark case, United States v. Sioux Nation (1980), the Supreme Court ruled 8-1 in favor of just compensation to the Lakotas.

The other trust duty is more literal. The United States owns or holds in trust an untold amount of Indian and tribal assets for the benefit of Indians and tribal nations. These trust assets include trust lands and the resources therein. Trust assets also include cash held by the United States for Indians or tribes, such as Individual Indian Money Accounts. Other assets are owned by Indians or tribes but are managed by the federal government. These assets include, for example, allotments owned by individual Indians but leased by the federal government to non-tribal members, with rental and royalty payments collected and managed by the United States.

When the federal government holds or manages Indian and trib­al assets, the duty of trust it owes is heightened to ensure its duty of protection is fulfilled. The United States Supreme Court once held that Congress “has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards” (Seminole Tribe v. United States, 1942). At times, tribal nations and individual Indians have been awarded large amounts for egregious federal breaches of trust, as in the case of the Cobell set­tlement which totaled over $3 billion. However, the Supreme Court no longer judges the federal government “by the most exacting fiduciary standards,” intently looking for and usually finding a technical reason to excuse the government from liability (e.g., United States v. Navajo Nation, 2003).

THE FUTURE OF THE TRUST RESPONSIBILITY

The trust responsibility is a source of great possibility and frustration for tribal nations and Indian people. On one hand, Congress has acted toward fulfillment of the trust responsibility for several decades now but has not come close to actual fulfillment of its duties. On the other hand, the Supreme Court has expressed a great deal of skepticism of tribal self-determination, pushing back against congressional policies. Worse, the judiciary will not allow tribal nations to sue the United States for breach of its trust respon­sibilities writ large.

That said, there is a great deal of promise in the future, but it will require time, patience, and creativity. In recent decades, tribal nations have been remarkably effective at lobbying and other forms of advocacy that have helped to prevent Congress and the executive branch from continuing to run roughshod over tribal interests. But that advocacy does not always work. Take, for example, the act of Congress favoring a mining company that wants to exploit resources underneath the sacred Apache land, Chí’chil Biłdagoteel (or Oak Flat). That land was confiscated by the United States long ago in retaliation for Apache resistance to American colonialism, but the federal government had long allowed tribal members to use the land for religious purposes, such as Apache coming of age ceremonies unique to the area. The proposed mining operation would create a crater that would destroy the sacred site. The United States Supreme Court that protects football coaches who make playing time dependent on Christian prayer or companies that discriminate against LGBTQ+ persons on religious freedom grounds now refuses to protect this religious practice by Indigenous peoples.

The United Nations Declaration on the Rights of Indigenous Peoples has the support of the United States (at least on paper). One of the declaration’s core principles is that a nation must seek and receive the informed consent of Indigenous peoples before taking actions that affect them, a principle known as free, prior, and informed consent (FPIC). Consent of the affected seems like an obvious requirement before taking governmental action, but when the federal government chooses to elevate political constituents ahead of tribal interests, suddenly we are back in the guardian–ward paradigm. Nevertheless, consent is a rising tide more gener­ally. In more supportive administrations, Department of the Interior officials take consent seriously, even incorporating FPIC into the most recent Native American Graves Protection and Repatriation Act regulations.

Moreover, there is some hope the Supreme Court will erode the unilateral power of Congress to regulate tribal nations without their consent. Justice Neil Gorsuch has suggested that Congress likely should not have the power to dictate terms to tribes without consent and has even suggested that the United States reinitiate treatymaking with tribal nations.

In sum, the federal–tribal relationship has long been fraught and complicated. The horrific history of dispossession and abuse ran hand-in-hand with unilateral federal actions taken without tribal consent. Indigenous peoples have long known that such selfish behavior and good public policy are antithetical. Hopefully, the United States will continue to lean into tribal self-determination in federal Indian affairs, law, and policy.

Matthew L.M. Fletcher, JD (Grand Traverse Band of Ottawa and Chippewa Indians), is the Harry Burns Hutchins Collegiate Professor of Law at the University of Michigan.

REFERENCES

Arizona v. Navajo Nation, 599 U.S. 555 (2023)

Babbitt v. Youpee, 519 U.S. 234 (1997).

Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

Cohen, F.S. (1953). The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy. Yale Law Journal, 62(348), 348–390.

Haaland v. Brackeen, 599 U.S. 255, 274-75 (2023).

Katanski, A.V. (2017). Stories that Nourish: Minnesota Anishinaabe Wild Rice Narratives. American Indian Culture and Research Journal, 41(3), 71–91.

Morton v. Mancari, 417 U.S. 535, 555 (1974).

Seminole Tribe v. United States, 316 U.S. 286, 297 (1942).

United States v. Kagama, 118 U.S. 375 (1886).

United States v. Navajo Nation, 537 U.S. 488 (2003)

United States v. Sioux Nation, 448 U.S. 371 (1980).

Worcester v. Georgia, 31 U.S. 515 (1832).